Advocates Library, Parliament House, Edinburgh, EH1 1RF
Telephone: 0131 226 2881
Facsimile : 0131 225 3642
DX ED 549302, Edinburgh 36, LP3 Edinburgh 10
Kenny McBrearty QC
Year of Call: 2000 Year of Silk: 2013
[email protected]
07974 732412
Areas of Expertise
Commercial Contracts
Commercial Property
Professional Liability
Public Law, Judicial Review and Human Rights
Planning
International
Professional Experience
Kenny's practice is centred predominantly in the fields of commercial law and professional negligence
but his ability to provide strong oral advocacy has seen him instructed in a wide range of cases, in both
private and public law. He has appeared in cases relating to, amongst other matters, banking, the
misuse of confidential information, professional negligence (involving accountants, solicitors,
surveyors, engineers and doctors), intellectual property, partnership, planning, property law, sports law,
fire recovery, flooding, private international law, telecommunications, extradition, freedom of
information, human rights and challenges to Acts of the Scottish Parliament. He has appeared at all
levels of the Scottish court system, including the Supreme Court.
He also has experience of appearing at arbitration, public inquiries and disciplinary tribunals, both of
professional and sporting bodies. He has been instructed for the United Kingdom government in
relation to applications to the European Court of Human Rights. Chambers and Partners recommend
him as "a sharp tactician with an assured court manner. He has a great manner with clients. He's
excellent. Very thorough, practical and commercial."
Recent Cases
Commercial Contracts
TOR Corporate A.S. v SINOPEC
: instructed for the defender in commercial Court proceedings to determine damages following upon
findings at an International Commercial Arbitration. Concerned with the interpretation and fulfilment of a
contract for the management of an oil rig. Sum sued for $61m. Also instructed in Judicial Review
proceedings brought by the claimants seeking to reduce the arbiters' determination (Inner House:
reported at 2008 SC 303), and in the Commercial Court action concerned with damages consequent
upon the arbiters' determination; Inner House decision re scope of the claim at [2011] CSIH 54; and
further Commercial Court debate at [2012] CSOH 112.
Kenwright v Stewart Milne Group
: instructed for the defender, in commercial court proceedings relating to the interpretation of a contract
and indemnity relating to the sale of development land.
Restaurantdiary Australia Pty v Restaurantdiary.com Ltd
Axiom Advocates
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Advocates Library, Parliament House, Edinburgh, EH1 1RF
Telephone: 0131 226 2881
Facsimile : 0131 225 3642
DX ED 549302, Edinburgh 36, LP3 Edinburgh 10
: dispute concerning a licence agreement relating to the distribution of software, centred on
interpretation of the agreement and allegations of bad faith.
Pinnacle Cloud Solutions Ltd v MacLellan Property Ltd
[2014] CSOH 155: action for breach of confidentiality; breach of covenants; fraud and failure to deliver
property, in an ongoing dispute between two competing companies working in the IT sector.
Ahmad v The Rangers Football Club Limited
: instructed for the pursuer in claim for payment of bonus under director's contract of employment.
Allied Vehicles Limited v Glasgow City Council [2013] CSOH 192: interpretation of contract relating to
the provision of electric vehicles.
Search Consultancy Ltd v BE-IT Resourcing Ltd:
section 1 proceedings for preservation of evidence and related interdict proceedings, relating to alleged
misue of confidential information.
Royal Bank of Scotland plc v O'Donnell:
instructed for the pursuer in Commercial Court action for the enforcement of a personal guarantee
against company directors in which reduction of the guarantee was sought on the basis of alleged
misrepresentation. Seven day proof followed by reclaiming motion.
Luminar Lava Ignite Ltd v Mama Group plc
2010 SC 310: Inner House appeal, following 6-day proof in the Commercial Court. Interpretation of a
non-compete contract entered into in connection with the sale of property. Also, consideration of the
proper use of affidavits, particularly in commercial cases.
Whyte & Mackay Ltd v Capstone International Inc.
2011 S.C. 221: Inner House appeal. Action for declarator that a contract for the exclusive
distributorship of whisky within the USA had been validly terminated. Counterclaim for implement of the
contract, failing which, damages. Appeal concerned with an order for interim implement of the contract
and interim interdict.
SJD Group Ltd v KJM (Scotland) Ltd [2010] CSOH 13: Commercial Court proof concerning the proving
of the tenor of a franchise agreement.
Gregor Homes Ltd v Mark Emlick;
2012 SLT (Sh. Ct.) 5, seven day proof relating to breach of missives, turning on whether the defender's
agent had ostensible authority to agree to the completion of works. Also instructed in a related action
seeking reduction of the transfer of properties by the defender, allegedly in an attempt to defeat any
decree awarded. Action based on lawful means conspiracy.
Stokors S.A. v Steven Alexander
: instructed for the pursuers in three ongoing actions based on the alleged fraud of a stockbroker
executing derivative trading on behalf of clients based in Switzerland and Lebanon. Total loss
amounting to €12m. Required to give related advice on a number of cross-border issues, including
the obtaining of security over funds held in the English branch of a UK bank, based on a Scottish court
order; the recovery of documents held in England; and the seeking of permission of the Scottish court
to use documents recovered for the purpose of raising subsidiary proceedings in England.
Gibson v The Royal Bank of Scotland
2009 SLT 444: Outer House; debate concerning the application of the "rule against offside goals" in
relation to a standard security granted in contravention of a pre-existing contract engaging an option to
purchase property.
Global Resources Group Ltd v MacKay
2009 SLT 104: Outer House, Commercial Court; debate concerning the scope of the delict of inducing
breach of contract in the context of a contract for provision of services in the oil industry.
Giftex Corporation v Divex Ltd
[2007] CSOH 48: Outer House, Commercial Court; ten-day proof, concerning an agent's right to
commission on a contract for the sale of military equipment in the United Arab Emirates.
Champion Technologies v Raymond Smith and Dunlaw Engineering Ltd
Axiom Advocates
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Advocates Library, Parliament House, Edinburgh, EH1 1RF
Telephone: 0131 226 2881
Facsimile : 0131 225 3642
DX ED 549302, Edinburgh 36, LP3 Edinburgh 10
: Commercial Court, 22nd January 2001; Application under Section 1 of the Administration of Justice
and consequent interdict proceedings in connection with the wrongful removal of, and damage to,
property and computer data. Application of "springboard" interdict.
Narden Services Ltd
; incidental procedure reported at 2006 SLT 338: Petition procedure for the rectification of the Register
of Companies, following upon alleged irregularities in the transfer of shares.
Hardie v Wales, as partners of Whale Engineering; CA195/01: sole counsel in proof in the Commercial
Court concerning ownership of partnership property.
Dalgleish v National Westminster Bank plc 2001 SLT (Sh. Ct.) 124: interaction between contractual
rights and unjustified enrichment under the condictio indebiti.
Edinburgh Rugby Limited v Scottish Rugby Union
: instructed in a number of disputes relating to breach of contract and breach of warranty. Involved in
ongoing advice and detailed negotiations. Settled prior to court action being commenced.
Anglo-Dutch Petroleum International Inc v Ramco Energy plc
: instructed for the defenders in Commercial Court proceedings, defending the enforcement of a
judgement for $16m obtained in the Texan Courts. Action settled prior to proof after the judgement was
overturned on appeal in Texas.
Property (Including Commercial Property)
Kenwright v Stewart Milne Group: see above.
TDC (Aberdeen) Ltd v Orange Personal Communications Ltd & Others
: Commercial Court action concerned with the recovery of land used by telecommincations operators
for the purpose of providing network services. Concerned with the interaction between property rights
and rights under the Electronic Communications Code 1984. Has since advised in relation to similar
issues.
Little Cumbrae Estate Ltd v Island of Little Cumbrae Ltd 2007 SC 525, Inner House: interpretation of
lease: landlord's obligation to repairdamnum fatale.
William Collins & Sons Ltd v CGU Insurance plc
2006 SC 674, Inner House: interpretation of a commercial lease and the landlord's right to obtain
interim access to property.
Luminar Lava Ignite Ltd v Mama Group plc: see above.
Gregor Homes Ltd v Emlick: see above.
Sheltered Housing Management Ltd v Bon Accord
2010 SC 516: Inner House appeal against decision of the Lands Tribunal, concerning the meaning and
effect of "community burdens" under the Title Conditions (Scotland) Act 2003. Also instructed in related
Commercial Court proceedings for recovery of violent profits based on the wrongful possession of
property.
Petition of the Crown Estate Commissioners 2010 SLT 741: appointed asamicus curiae in petition to
establish the scope of the Crown Estate Commissioners' right to charge in respect of moorings.
Concluded after proof.
Batt Cables plc v Spencer Business Parks Ltd
2010 SLT 860: Commercial Court action to determine whether a break notice had been validly
exercised under a commercial lease.
Intellectual Property Rights
British Sky Broadcasting Limited v DBros & Others
: instructed for BSkyB in proceedings relating to alleged breach of transmission rights under s.298 of
Axiom Advocates
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the Copyright Design and Patents Act 1988.
The Football Association Premier League Ltd v Thompson & Others
: instructed for the Football Association Premier League Ltd in a number of actions seeking to interdict
premises from showing live football matches transmitted from outwith the U.K, contrary to s.298 of the
Copyright Design and Patents Act 1988.
International
Service Temps Inc. v Macleod & McCorquodale
[2013] CSOH 162: action for decree conform for enforcement of a judgment of the Texas courts in
Scotland. Concerned with submission to jurisdiction and the scope of the Protection of Trading
Interests Act 1980.
Instructed in a number of actions with a private international law dimension: see Stokors S.A. v Steven
Alexander, TOR Corporate A.S. v China National Star Petroleum Corporation; Whyte & Makay Ltd v
Capstone International Inc. and Anglo-Dutch Petroleum International Inc. v Ramco Energy plc above.
Professional Liability
Park's of Hamilton (Holdings) Ltd v Holmes Mackilop LLP
: Solicitor's negligence claim based on failure to advise in respect of time limits in relation to
enforcement of a warranty arising out of a share purchase agreement.
Institute of Chartered Accountants of Scotland v Harris
: prosecuted professional misconduct complaints concerning CA's obligations in relation to an insolvent
company.
McCann v Waddell & Mackintosh
: following upon a four week proof successfully defended a claim against solicitors in respect of alleged
negligence in advising in relation to missives for the sale of development land.
McCrindle v MacLay Murray and Spens
: successfully pursued a claim against solicitors in respect of negligence in failing to protect a client's
claim for retrospective interest in a claim in an arbitration.
Steven v Hewatts
: solicitors negligence claim based on alleged failure to advise on, and implement, an Inheritance Tax
arrangement. Issues as to whether a duty of care is imposed on the solicitor with regard to the intended
beneficiary of the scheme.
Heather Capital Limited v Savills Commercial Ltd
: instructed for the defenders in relation to alleged surveyor's negligence. Sum sued for £5.6m.
Clydesdale Bank plc v Allied Souter & Jaffrey
: instructed for the defenders in relation to alleged surveyor's negligence arising out of valuation of an
aircraft hanger.
Gregor v VMH LLP
: solicitors negligence, based on failure to advise on the proper terms of a personal guarantee. Due to
proceed to proof in April 2013.
The Legal Services Centre Ltd v Miller Samuel LLP [2006] CSOH 191
: Solicitors negligence. Debate re time-bar.
Stewart Travel Centre v Wylie & Bisset
: accountants' negligence claim based on the defenders' failures in understating the pursuers' liabilities
in their financial statements, and on their negligent advice given in reliance on those erroneous
statements. Sum claimed £2.4m. Settled prior to proof in May 2010.
Halifax Life Ltd v DLA Piper LLP
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: instructed for pursuers in claim based on solicitor's breach of warranty of authority in relation to a nonexistent principal. Claim valued at approximately £4m. Settled prior to debate.
Martin McAllister v Wallace Hodge: action for breach of trust by a solicitor acting as trustee and
professional adviser to the trust.
Public Law, Judicial Review and Human Rights
Imran Shahid v The Scottish Ministers
: Supreme Court appeal based on alleged breaches of arts. 3 & 8 of the ECHR, in consequence of a
prisoner having been kept in solitary confinement for 56 months, and alleged breaches of the
provisions regulating solitary confinement.
McNamara v The United Kingdom
: instructed for the UK in an application to the European Court of Human Rights based on an alleged
breach of the reasonable time requirement of art. 6 as a result of the length of civil proceedings.
Great Stuart Trustees Ltd v Public Guardian
2015 SLT 115: interpretation of the Adults with Incapacity (Scotland) Act 2000 re powers of attorney;
instructed as amicus curiae.
ICL Inquiry
: appointed as Junior Counsel to the Inquiry, chaired by Lord Gill, into the explosion at the ICL plastics
factory in Glasgow. The Inquiry was the first held in Scotland under the Inquiries Act 2005, and was the
first instructed jointly by the UK and Scottish Governments.
H v Lord Advocate & The Scottish Ministers
2012 SLT 799: instructed for the Scotish Ministers in an appeal to the High Court and then to the
Supreme Court concerning extradition, in particular, the balancing of the public interest in extradition
with the article 8 rights of extraditees and their children, and the competency of the appeal having
regard to the inter-relationship between the Extradition Act 2003 and the Scotland Act 1998. Also
instructed on behalf of the United Kingdom in relation to an application to the Europen Court of Human
Rights by one of the appellants.
Ruddy v Chief Constable
[2012] UKSC 57; instructed for the appellant in an appeal to the Supreme Court concerning the
competency of raising claims for damages under the Scotland Act and the Human Rights Act by way of
ordinary action rather than judicial review, and also concerning the competency of different grounds of
action against different defenders in the same proceedings. Action now remitted to the Court of
Session and appeal pending in relation to the relevancy of the underlying claim that the procedural
obligaion under article 3 was breached.
Tesco Stores Ltd v Dundee City Council & Asda Stores Ltd 2012 S.C. (U.K.S.C.) 278: see below under
planning.
Salvesen v Riddell
2013 SC (UKSC) 236 instructed on behalf of the Lord Advocate in respect of a pending appeal to the
Supreme Court relating to the compatibility of certain provisions of the Agricultural Holdings (Scotland)
Act 2003 with article 1, protocol 1 of the ECHR.
Thomson v Scottish Ministers 2011 SLT 683 and 2013 SLT 628; instructed for the Scottish Ministers in
proceedings brought by the mother of a woman murdered by a prisoner while on home release. Action
based on an alleged breach of artcile 2 of the ECHR.
BJ v Proudfoot & Lord Advocate;
2011 S.C. 201; Inner House; challenge to the legislation allowing for the placing of children in secure
accommodation; alleged incompatibility with Article 5 of the ECHR
Anderson v Shetland Islands Council & Scottish Water
2010 SC 446; Inner House appeal in judicial review proceedings. Concerned with the scope of water
authority's obligations under the Sewerage (Scotland) Act 1968.
Axiom Advocates
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Advocates Library, Parliament House, Edinburgh, EH1 1RF
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Lord Advocate v McNamara 2009 SC 598, Inner House; proceedings to have a party litigant declared
vexatious; consideration of the tests to be applied.
The Scottish Ministers v Scottish Information Commissioner, re Alexander's Application and Elstone's
Application
2007 SC 330, Inner House; appeal under the Freedom of Information (Scotland) Act 2002; application
of the exemptions under sections 28 and 30 of the Act.
The Scottish Ministers v Scottish Information Commissioner, re Mr F's Application,
Inner House; appeal under the Freedom of Information (Scotland) Act 2002, concerned with the
application of the exemptions under sections 30 & 38. Conceded by the Scottish Information
Commissioner on the day of the appeal hearing.
Petition of the Crown Estate Commissioners; see above.
Planning
Tesco Stores Ltd v Dundee City Council & Asda Stores Ltd
2012 S.C. (U.K.S.C.) 278:instructed for the Interested Party in an appeal to the Inner House and then
the Supreme Court against the decision of the planning authority to grant planning consent. Concerned
with the proper interpretation and application of the sequential approach.
Property Damage
Regularly instructed to pursue and defend claims of property damage arising as a result of fire,
flooding, etc.
Cunningham v Cameron & British Gas Services Ltd
[2013] CSOH 193: successfully pursued claim for fire damage as a result of a blocked flue and faulty
installation of boiler.
North-East Technology Ltd v Freyssinet Makers:
high value claim for damage to property alleged to have been caused by engineering contractors'
failure to reinstate flood bunds.
Atherton v South Lanarshire Council
: claim for damage to flooded property, alleged to have been caused by local authority's breach of the
Flood Prevention (Scotland) Act 1961.
Viewpoint Housing Association Ltd v City of Edinburgh Council
2007 SLT 772, Outer House; scope of local authority's duties as roads authority and floods authority.
Sport
Donaghy v Goodwillie: instructed for the pursuer, a football agent, in relation to claim against player for
alleged breach of an exclusive agency agreement.
Ahmad v The Rangers Football Club Limited: instructed for the pursuer in claim for payment of bonus
under director's contract of employment.
Nixon v Livingston FC: instructed for the defender in claim relating to directors loans.
Instructed for Celtic FC in relation to claims to prevent supporters' attendance at matches, based on
alleged breach of season ticket conditions and UEFA regulations.
Instructed on behalf of Dundee F.C. for appeal before the Scottish Football Association against a
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decision of the Scottish Premier League, concerning alleged transfer irregularities on the part of
Livingston F.C.
Edinburgh Rugby Limited v Scottish Rugby Union: see above. Also instructed for disciplinary hearing
brought by SRU.
Advocates Courts & Tribunals
Supreme Court; Court of Session, Outer House and Inner House; Sheriff Court; International
Commercial Arbitration, before a panel of three arbiters; Disciplinary Tribunal of the Institute of
Chartered Accountants of Scotland; Scottish Football Association Appeal Tribunal; Scottish Rugby
Union Disciplinary Hearing; Traffic Commissioner Hearings.
Advocates Appointments & Memberships
2009: Appointed by Glasgow City Council as one of a panel of four counsel who are to deal with all
work arising out of the Commonwealth Games 2014.
2008: Appointed junior counsel to the ICL Inquiry into the gas explosion at ICL Plastics Ltd in Glasgow
in 2004, which killed nine people and injured over fifty-four. The inquiry, chaired by the Lord JusticeClerk, Lord Gill, was the first public inquiry held in Scotland under the Inquiries Act 2005 and was the
first inquiry under that Act, instructed jointly by the Scottish and UK Governments.
2006: Appointed Standing Junior Counsel to the Scottish Government.
Directories
Rated in the last edition of Chambers and Partners as band 1 for Real Estate Litigation; Band 2 for
Professional Negligence and Band 3 for Commercial Dispute Resolution. Recommended for
commercial litigation and professional negligence in the Legal 500.
Advocates Additional Information
Fluent in Spanish
Axiom Advocates
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